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Electoral Reform- Part 10(a): Reforming Congress

Two things strike this writer regarding criticisms and proposals for reform. The first is that a disproportionate amount of the blame for the gridlock in Washington is laid at the feet of the Republican Party. The second is that many view this gridlock as something new in Congress. And while they decry the influx of money as being the main cause of GOP gains in the House and Senate in 2010, they focus their attention on the Senate rather than the House. In particular, they view Rule XXII-B, the cloture rule, for creating the resulting gridlock. In their view now, it is Republican abuse of the filibuster and cloture votes that is holding up progress today. They tend to have amnesia when reminded that a very short time ago, they were the minority party in the Senate and that they used these very same techniques then. For example, I seem to remember a debate about the so-called “nuclear option” that was averted at the last minute. There was no nuclear option then and there should not be any now.

From its inception, the Senate was set up to be the more deliberative of the two chambers of Congress. The higher minimum ages meant that a Senator was more wise than a House member. Their six year term limit was designed to shield them from the political whims that occasionally blew through the lower chamber. Some of the more important tasks like treaty ratification, advice and consent, and removal from office were placed in the hands of the Senate. This was no mistake by our Founders. They had the Senate set up in this manner to be not only a check on the Executive, but a check on the more reactionary House. In effect, the two year House term assured that members were not only members of the lower chamber, but perpetual candidates. Senators were shielded from that state of affairs. In fact, Senators were originally selected by their state legislatures.

But at what point does due deliberation cross that boundary into obstructionism? It serves little purpose to point fingers at the Democrats who basically blocked every Bush initiative in his second term and held up numerous judicial and Executive branch nominees. This is not a case of pay back for those years, but an effort to thwart a radical agenda being foisted upon the country by the Obama Administration. When not nominating Communists to key posts, his agenda is reordering 16% of the American economy while taking over, bit by bit, other parts of that economy. No one doubts that on paper and academically Elizabeth Warren is qualified to be the head of a consumer protection board set up in the Federal Reserve. But, ideologically, she is a radical outlier. Likewise for Van Jones and other Obama appointees. It always amazes me how Liberals often view their obstructionist actions as noble, but when Republicans do the exact same thing, there is finger pointing and blame.

Granted, some of the actions by the GOP are somewhat silly. Do we really need to hold up the confirmation of the Public Printer of the United States? While I understand viewing Obama appointees with suspicion in agencies like the NLRB, FEC and EPA, some of the holds and filibusters are for non-controversial positions within the government and Public Printer would seem to meet that criteria.

Conversely, the Democrats seem to think and they certainly act as if their policies should be rubber stamped because one of their own is in the White House and they had the majority in the Senate. When they had the majority in the House, the electorate saw the results of essentially one party rule where TARP was expanded, a $780 billion boondoggle of a stimulus placed us further in debt with no discernible advantages, Obamacare was passed as was Dodd-Frank and the EPA has evolved into a de facto environmental Gestapo. NO! Because you have three-fourths of the political power (Executive, House and Senate), it does translate that you are permitted to run roughshod over the wishes of the minority party. That is the beauty of the design of the Legislative branch. More importantly, it is what led to the 2010 Republican midterm wave. Instead of money or outside groups or conservative talk radio or any other reason postulated, the GOP successes in 2010 were presaged by Republican victories in Virginia, New Jersey and Massachusetts. They were a natural voter reaction to the policies of Barack Obama. They were yelling to hit the brakes. The so-called obstructionist Senate did just that. And when they proposed legislation, as the minority party in the Senate, they were dealt a backhand by Harry Reid.

Since the focus is on the Senate, I will deal with only their rules, specifically those involving the filibuster, cloture, advice and consent, and standing committees. The House rules are more “lax” for lack of a better word. Hence, we see more action on legislation originating out of the House that is then “held up” in the Senate. And who controls the Senate but the Democrats? In yet another case of Liberal projection, it is the Democratic Party that should be called the “Party of NO!” Numerous bills have been passed with majorities, often with Democratic support to some degree, out of the House only to be held up by Harry Reid and company.

Many may think that the House is the way things should work in Congress. So, we should look at the differences between the two houses of Congress. In the House, the Speaker is also the majority party leader in that chamber. When scheduling floor measures, the Speaker generally consults only with their party on the calendar. In the Senate, because there is supposed to be greater consensus since the Senate is, after all, a check on the House, the Majority Leader is expected (and usually does) consult with the Minority Leader. As a further reiteration of the importance of the Senate, House rules regarding debate are quite restrictive while in the Senate they are more unlimited, although there is an alleged 30-hour limit. For even non-controversial legislation, in the House they proceed through a practice called “suspension of the rules” which can be achieved by voice vote. In the Senate, non-controversial legislation is advanced by “unanimous consent” which can involve complex negotiations just to get the thing to the floor.

In the House, consideration of legislation is very structured with little deviations while in the Senate it is less structured. This is best seen when it comes to considering amendments to bills. In the House, the offered amendment must be germane to the original legislation with very few, if any, exceptions. In the Senate, except for four instances, the offered amendment need not be germane to the original legislation. Finally, in the House it is more difficult to go around the proper committee’s language and interpretation and findings of proposed legislation while it is a lot easier to do so in the Senate.

Perhaps as a compromise, there is some middle ground between the two sets of rules. The more radical and liberal suggestions that the filibuster be eliminated in the Senate (the House has no holds or filibusters) should be considered with all due deliberation. The filibuster actually dates back to the days of Aaron Burr. Although one will not find any mention of holds or filibusters in the Constitution, that document gives Congress the responsibility of setting up their own rules and procedures. The Senate filibuster was not used until 1837 and then only rarely before its use took off in the 1970s. Originally, it was difficult to break a filibuster because it required a two-thirds vote to end debate. Under pressure from then-Senator Walter Mondale, that threshold was reduced to three-fifths, or the infamous 60 votes. The traditional view of the filibuster is someone holding the floor for X amount of time and refusing to yield their time. The Jimmy Stewart rendition is a thing of the past. Instead, now the Minority Leader simply informs the Majority Leader regarding their intentions and/or that they do not have the proper amount of votes to invoke cloture and move the legislation for a yes or no vote. While elimination of the filibuster has been proposed- the nuclear option- a party in control and “frustrated” does so at their own peril. Each party knows full well about the ebb and flow of majority control in the Senate.

In effect, the rules of the Senate codify the American disdain of “tyranny by the majority.” Which brings me full circle to the Democratic Party’s assertion of GOP obstructionism, especially in the Senate. Republicans did not take control of the House until 2011 and they did not weaken the hold of the Democratic Party in the Senate until that same year. That means that Obama and the Democratic Party had majority rule in the House and Senate for two whole years. During that time, everyone was touting the legislative agenda and “achievements” of the 111th Congress. Just research into the issue at that time shows the media’s awe at the speed with which the Obama agenda was passed. Yes, there was that little drama over Obamacare, but even there a loophole- the budget reconciliation process- was used to advance that agenda. In the end, the ultimate arbiters of that agenda spoke in 2010 and put the brakes on it most dramatically in the House. If not for some missteps by Republican candidates along the way, the GOP could be in control of the Senate today. It was not the influx of outside money, the rise of the Tea Party, increasing polarization of the Republican Party or any other of the plethora of ideas out there. It was a rejection of the Obama agenda plain and simple, not some weird brainwashing scheme by the Tea Party or some misguided rhetoric or even “unpatriotic” comments by a Senate Minority Leader.

Going forward, I will look at some of the proposals floating around and analyze them. However, the key point to be taken away is that unlike most, it is obvious that the Senate is actually acting as it is supposed to work. The Legislative branch is a check on the Executive branch. But there is a series of “sub-checks” codified in the rules of both houses of Congress, but especially the Senate that ensures consensus on actions that affect the entire Nation.